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Private Rights and Planning Consent

Jenny Steele, BA, LLM

Lecturer in Law, Faculty of Law, University of Southampton,

Southampton SO17 1BJ < js@soton.ac.uk>

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The Cases:

Wheeler v JJ Saunders Ltd (Court of Appeal, 19 December 1994; The Times, 3 January 1995);

Hunter and Others v Canary Wharf Ltd (Judge Richard Havery QC; The Independent, 20 December 1994)

Neither of the above cases is fully reported. References to Wheeler v Saunders are references to a LEXIS transcript.

Summary

Despite the scope for conflict between the private law of nuisance and the public law of the planning system, there has not been much litigation. The cases of Wheeler v JJ Saunders Ltd and Hunter and Others v Canary Wharf Ltd demonstrate that no clear principles have yet emerged.

Contents

Introduction
Wheeler v Saunders
Hunter v Canary Wharf

Footnotes

Introduction

Recently, in the case of Gillingham v Medway Chatham Dock Co Ltd [1992] 2 WLR 449, Buckley J was required to consider the impact of planning consent on an action in nuisance. In that case, it was recognised that planning permission could not 'license' the commission of a nuisance in the same way that a statute can. A planning authority was however capable of changing the character of a neighbourhood, thus rendering innocent some activities which, had it not been for the change in question, would have amounted to a nuisance. This 'principle' was consistent with dicta of the Court of Appeal and House of Lords in the case of Allen v Gulf Oil Refinery Ltd [1980] QB 156, [1981] AC 1001 respectively.

Now, in Wheeler v JJ Saunders Ltd ('Wheeler'), the Court of Appeal has had its first opportunity to consider a case where a grant of planning permission was argued to preclude an action in nuisance, and therefore to assess the Gillingham decision. More potentially important developments are signalled by the preliminary issues raised in Hunter v Canary Wharf Ltd.

Wheeler v Saunders

Wheeler v Saunders involved appeals on two questions. Only one of these related to nuisance, and this comment will be confined to the issues relating to nuisance. The other point of appeal was concerned with rights of way. Three full judgments were delivered in Wheeler, and the picture which emerges from them is not entirely clear. The decision in Gillingham was not exactly doubted, but neither was it unambiguously supported as completely correct.

The principle referred to above, regarding change in the character of the neighbourhood, did appear to receive general acceptance, though even this must be somewhat qualified for reasons explained below. In general terms though, it was the Court's view that Gillingham could be relevantly distinguished and, as a result, it is at least possible to say clearly that the particular planning permission considered in Wheeler was not thought to constitute a 'change in the character of the neighbourhood'. In this case therefore, even the inevitable results of permitted development were capable of constituting a nuisance and, in addition to damages, an injunction would lie.

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Public Interest Questions

The Gillingham principle provided explicitly that planning permission is not to be regarded as equivalent to statutory authority. It has of course been pointed out that in Gillingham itself, the activities of the planning authority were allowed to have an effect which seemed very similar to that of statutory authority. In addition though, express analogies were drawn between the two which appeared to go further than a mere similarity in effect.

Thus, Buckley J explained the defence of statutory authority as deriving from the fact that 'Parliament is presumed to have considered the interests of those who will be affected by the undertaking or works and decided that the benefits from them should outweigh any necessary side effects'. This is unlikely to be too controversial an assumption in the private law context, although no doubt it is not an entirely accurate picture of the process involved.

However, Buckley J went on to add:

'I believe that principle should be utilised in respect of planning permission. Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and inquiries, and ultimately the minister decides.' ([1992] 2 WLR 449, 460).

Each of the judgments in Wheeler v Saunders can be taken to reach towards a refutation of the parallel drawn in this extract. In particular, each seeks to emphasise to some degree that the planning process is not (or at least, not always) involved with the balancing of individual interests as against community interests in the way supposed in the passage above. This includes questioning the extent to which viable challenges to the decision in question are possible at the instigation of objectors. As such, the judgments hint at a fuller consideration of the purposes of the planning process, and particularly the complexity of any such purposes, than was provided in Gillingham. The judgment of Sir John May goes the furthest along this track, and his general conclusions are likely to be the most controversial. It is these questions about the relationship between individual rights and the planning process, rather than the decision to distinguish Gillingham as such, which constitute the most interesting aspect of the judgments. For reasons which will be developed here, an understanding of these issues is likely to be of some importance in answering future questions about the relationship of nuisance and planning. Ultimately, the judgments are rather disappointing in this respect, but they may nevertheless point the way forward.

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Factual Issues: the Wheeler Consent

So far as the claim in nuisance was concerned, the subject-matter of the Wheeler case was the housing of pigs close to the plaintiff's dwelling house, and to other buildings on the plaintiff's premises, with the result that the house and buildings were affected by foul odours. The latter buildings were let out by him as holiday accommodation, and loss of revenue was therefore said to be suffered in addition to the general discomfort associated with intrusive smells. The defendants responded by arguing that since they had obtained planning consent for the two 'Trowbridge houses' concerned, smells emanating from them could not constitute a nuisance.

The defendants had reared pigs on their premises before the development in question, but had done so in different buildings and, it would seem, using different techniques. It appears from the factual summary in the judgment of Staughton LJ that there were altogether 800 pigs housed in the two new 'Trowbridge houses'; that one of these buildings was only 11 metres from inhabited buildings on the plaintiff's property; that the system employed was one based on slurry rather than (as previously) on straw bedding; and, further, that at least for some time, the pigs were fed on whey. The last two factors appear to have contributed to the particular foulness of the odours to which the plaintiff was subjected. Whilst some of these elements might not have been inevitable consequences of the permission granted for the construction of the Trowbridge houses, it was accepted that other features of the nuisance complained of were indeed inevitable consequences of the development in question, and these too were ultimately held to be actionable without the need to distinguish which was which.

All of the judges agreed that the grant of this particular planning permission did not give rise to a 'change in the character of the neighbourhood' in question, and therefore did not influence the nuisance action brought by the plaintiff. This finding in itself places welcome emphasis on the limitations of the Gillingham case. This is particularly important in that, at some points in Gillingham, Buckley J may have stated the effects of his own judgment a little too widely. In particular, the finding in Wheeler (that not all planning consents operate in the same way) must cast some doubt on the validity of Buckley J's concluding remark as follows:

'In short, where planning consent is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development and not as it was previously.'

Since Wheeler, it is clear that the truth of this will depend on the nature of the consent in question.

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Distinguishing Gillingham

It will be appreciated then that much depends on identifying which consents (if any) will fall within the Gillingham principle. Here, the problem is that Wheeler was treated as being a clear case, such that the differences between this consent, and the one in Gillingham, did not need to be clearly defined. One of the most central tasks has therefore been left to future litigation. The question must, at this stage, be put broadly: on what sort of basis did the Court feel that this case could be distinguished from Gillingham?

An extra complication is added by the scepticism of at least one judge in respect of the correctness of Gillingham. Staughton LJ based his decision not on Gillingham itself (whose validity he hesitated to endorse), but on the dicta in Allen v Gulf Oil to which Gillingham referred stating:

'I accept what was said by Cumming-Bruce LJ: first, that a planning authority has in general no jurisdiction to authorise a nuisance; and, secondly, if it can do so at all, that is only by the exercise of its power to permit a change in the character of the neighbourhood. To the extent that these two propositions feature in the judgment of Buckley J, I agree with his decision, but I would not for the present go any further than that.'

The non-committal language employed here is noteworthy. In the final analysis, Staughton LJ's conclusion was simply that to describe this consent as giving rise to a change in the character of the neighbourhood would be 'a misuse of language'. His judgment does, however, hint at more, and in particular includes reference to the fact that the consent in question 'is not a strategic planning decision affected by considerations of public interest'. Comparable strands of reasoning appear in each of the two other decisions. The implications of these are important.

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Permission v Authority

In summary then, if the reasoning in Gillingham was ambiguous as to whether planning permission and statutory authority were to be seen as wholly distinct, or (alternatively) as somehow analogous, the Court of Appeal in Wheeler would appear to have opted for seeing them as distinct. The reasoning on which this option is based is, however, variable.

Staughton LJ began by pursuing a potentially fruitful path of enquiry, in pointing out that a planning authority can be taken only to have the powers which are delegated to it by Parliament: as such, it cannot be taken to have the same powers as the legislature, and this is a reason not to assume that it is able to authorise a nuisance. This might have been a particularly helpful starting point from which to investigate the precise implications of the 'change in the character of the neighbourhood' device. For example, by virtue of what part of the applicable statutory framework is this power conferred; and what precise role does it have in the tort of nuisance? This latter point is important, since in general, the character of the neighbourhood is decisive only in a limited range of nuisance cases, and indeed is relevant only in certain types of case.1

It is important to try to grasp the connection between the notion that the planning authority may have had delegated to it, in the words of Buckley J, 'the task of balancing the interests of the community against those of individuals and of holding the scales between individuals', and the rather different notion that the authority is empowered to change the character of the neighbourhood. Which of these issues is to be regarded as key? If the former is the key issue, then quite apart from the fact that some doubt is cast in Wheeler on the correctness of this view of the planning process, it must also be asked why it is only in cases where the 'character of the neighbourhood' is relevant that nuisance is ousted by the planning process. If the latter is the key issue, then it is clear that the implications of Gillingham will be narrower than at first thought; and it must also be asked why the references to balancing competing interests need to be made at all.

Unfortunately, though the judgment of Staughton LJ starts by raising the issue of the extent of the planning authority's statutory powers, this merges quickly into consideration of whether there is a 'power to abolish or limit civil rights'. Despite endorsing the view that the effect of planning permission is wholly different from that of statutory authority, Staughton LJ seems to have discussed the Gillingham case as though it was about an 'immunity' in much the same way that a statutory authority might be. As an example, Staughton LJ suggested that the nuisance in Gillingham was found to be 'authorised by the grant of planning permission'. In fact, this was the very confusion that the Court of Appeal might have cleared up in Wheeler: the truth of the matter is that the impact of the planning permission on the character of the neighbourhood was sufficient to ensure that the interference in Gillingham did not amount to a nuisance at all. Whilst discussion of 'immunity', or of 'abolition of rights' may possibly be appropriate to statutory authority cases, it is misleading to apply the same terms to planning cases.

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Peter Gibson LJ

The judgment of Peter Gibson LJ is perhaps best encapsulated in his remark that:

'The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge.'

Apart from the obvious reference here to the absence of alternative effective mechanisms by which objectors can assert their rights, it is also interesting that the language employed by Peter Gibson LJ emphasised the 'permissive' nature of a planning consent: this emphasis is apparent, for example, in the otherwise unnecessary reference to 'the permissive grant of planning permission'. This places an interesting emphasis on the role of planning - at least in some instances - as a system which provides for a greater or lesser degree of interference with the purposes and proposals of developers, and it is a point which might be developed further. The point can perhaps be better appreciated if it is remembered that the actual application of the planning process is variable and depends, among other things, on policy guidance. One of the dimensions along which the planning process may vary is the dimension of the degree of control which the authority is expected to exercise and, during the 1980s, policy guidance included strong presumptions in favour of developers, and against placing conditions on the grant of permission. Would it not appear strange if a less interventionist role on the part of the planning process were to allow the instruments of private ordering, including the tort of nuisance, to be ousted more easily?

This emphasis on the permissive role of planning sits slightly uneasily alongside the further remark of Peter Gibson LJ that a case such as Gillingham will involve broad consequential effects 'such as required a balancing of competing public and private interests before permission was granted'; and that 'in such a case the public interest must be allowed to prevail'. Again, this invites analysis in two respects. First, from the point of view of the planning process, it might be asked whether or not this is an accurate representation of that process. Second, from the point of view of the tort of nuisance: given that the Gillingham approach supposedly integrates the effect of planning into part of the test for whether there is an actionable nuisance, by what precise mechanism is the public interest supposed to 'prevail'? To answer this question, we would need a clear grasp of the way in which a planning authority is entitled to change the character of a neighbourhood; and we would also need to ask whether 'public interest' is supposedly a separate head of public policy which would confer an immunity - in which case, the Gillingham principle is only part of the story.

Finally, Peter Gibson LJ appears to have ended with a form of 'factual' distinction. Thus, given the content of the planning application, it was 'hard to believe' that the authority had given any weight to the interests of the plaintiff; and 'if' the justification for Gillingham was that this task had been carried out, 'that justification would not appear to apply in the present case'. The difficulty is that this simply raises again the issues relating to public and private law which underlie this whole area. If the task of considering competing interests is genuinely delegated to the authority, does it help the applicant to argue that this has not (in a particular case) been done? Counsel for the defendants appear to have argued that any such failure should give rise to a claim to judicial review, on the basis of irrationality. As to this, it was pointed out by both Staughton LJ and Peter Gibson LJ that this is scarcely an adequate or convenient path for the objector and (per Staughton LJ) might lead to congestion in the Crown Office lists. However, the point remains that if these are the objections, then tort is - not for the first time - likely to circumvent public law because it is more convenient for plaintiffs. In other contexts, Staughton LJ in particular has not seemed so ready to allow this to happen.2

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Sir John May

So far as it was stated by both Peter Gibson LJ (explicitly) and Staughton LJ (in effect) that the developer who obtains planning permission goes ahead at his own risk as far as nuisance actions are concerned, this case should be a matter of some relief for planning authorities, since any implied obligation to assess all the possibilities in terms of extinguished private rights could become an onerous addition to the planning process. Sir John May continued this trend, and indeed travelled the furthest towards doubting the relevance of planning decisions to nuisance actions, and towards sketching out an idea of what the planning process involves - but with results that could ultimately pose planning authorities with more of a headache.

It seems to have been the contention of Sir John May that the questions which have to be considered by a planning authority, both in the formation of policy and in the decision to grant or not to grant a particular permission, are different from those which have to be considered at private law. In particular, several cases are referred to in his judgment which suggest that 'planning purposes' are unrelated to the interests or the purposes of a particular occupier, and are related instead to the 'character of the use of land'.3 This would simultaneously explain why determination of the 'character of the neighbourhood' is a matter within the competence of a planning authority, and destroy the idea that the authority should generally be taken to have weighed up the plaintiff's interests. The further conclusion from this, as Sir John May put it, is that although 'the inevitability of a nuisance could well be the ground for refusing planning permission, the grant of the latter could not in my view license such a nuisance'. What could cause concern however is the remark which followed, to the effect that:

'If a planning authority were with notice to grant a planning permission the inevitable consequence of which would be the creation of a nuisance, then it is well arguable that grant would be subject to judicial review on the ground of irrationality.'

It is one thing to say that the grant of planning permission will generally leave the availability of an action in nuisance unaffected (except so far as the 'character of the neighbourhood' has been changed), but quite another to say that inevitable interference with private rights is sufficient to leave a grant of planning permission vulnerable to judicial review. Again, it might be assumed that if Sir John May is otherwise correct, and if the 'planning purposes' which are the subject-matter of the planning process are separable from the interests of individuals, then a planning decision could not be questioned simply on the basis that it failed to give priority to those individual interests. The traditional answer is presumably that the private right is enforceable in private law only. And of course the same problem remains which introduced the Gillingham case to begin with: that remedy being an injunction, it looks very much the same as the best that public law could provide.

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Summary

Finally, the relationship between the factual questions on the one hand (whether in fact a planning authority was active or permissive in policy formation; whether it considered the relevant public or private interests); and, on the other hand, the question of what powers and duties are delegated to it as a matter of law, will appear to be a crucial element in considering the effect of planning permissions in private law. Undoubtedly, each of the components of this question was raised in the Wheeler case, but the precise connections between them - and therefore the answer to the question - has yet to be clarified. Such clarification will need to follow given the potential implications of the Gillingham judgment.

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Hunter v Canary Wharf

Further evidence of the importance of these implications is provided by the case of Hunter v Canary Wharf. Although for the time being this case must be dealt with relatively briefly, Hunter involved the resolution of preliminary issues in litigation which in the long run is capable of being extremely significant both in its own right, and in respect of the future development of the tort of nuisance. The case concerns litigation by inhabitants of London's 'Docklands', in respect of the redevelopment of that area.

Hunter v Canary Wharf itself appears from the brief reports available to have been primarily concerned with the issue of whether interference with television reception was capable of amounting to an interference which would be actionable in nuisance. Despite pre-existing English authority to the contrary, Judge Richard Havery QC appears to have ruled that this may constitute an interference with proprietary rights sufficient to give rise to an action in nuisance on the part of persons with exclusive possession of the land: as to this, see the comment in Environmental Law Bulletin, January 1995, 1-2. For present purposes, it should also be noted that the redevelopment of Docklands was of course subject to planning legislation, and the work in question was part of an authorised development - although it may not have passed the hurdle of being an 'inevitable' result of the permitted developments.

Interference with television reception will be only one ground for complaint amongst several in the course of the Docklands litigation. The greatest problems, and most interesting issues, will arise if any of the work complained of is categorised as being such an 'inevitable' result. Under these circumstances, for the reasons developed above, questions about the precise nature of the applicable planning process, and about the role of 'character of the neighbourhood' in nuisance cases in general, will become crucial. It is to be hoped that the resolution of these questions will not continue to be avoided.

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Footnotes

1. In particular, the leading authority of St Helens Smelting Co v Tipping (1865) 11 HLC 642 appears to dictate that the character of the neighbourhood is relevant only to 'amenity' nuisances - although a definition of what this excludes could cause further controversy. This case was discussed in neither Wheeler nor Gillingham. The writer's own view is that in all nuisance cases, questions about the reasonableness of the interference in question will be relevant; but only in amenity cases has the nature of the surrounding neighbourhood been seen as relevant. Return to text.

2. See the judgment of Staughton LJ in M v Newham London Borough Council and others [1994] 4 All ER 602, where the availability of other 'remedies', including judicial review, operated to exclude the possibility of an action for breach of statutory duty. Some of these were 'remedies' in only a very sketchy sense. The failure of the action for breach of statutory duty was also instrumental in denying the existence of a duty actionable in negligence, and so the supposed 'intentions of Parliament' in respect of remedies under the tatutes in question had far-reaching effects in private law. Return to text.

3. The main authority relied on in this respect was Westminster Council v Great Portland Estates plc [1985] 1 AC 661. Return to text.

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